In a short May 2025 judgment the Ontario Appeal Court dismissed an appeal where the insured claimed that the underwriters had delayed the exercise of its rights to void the 2015 policy and that renewing the policy amounted to a waiver or estoppel.

The insured made a major claim under its 2015 insurance policy. The underwriters alleged that there had been a material misrepresentation entitling it to void the 2015 policy. The policy was renewed for the 2016-17 year in the context of resolving the underwriter’s obligation to respond to the claim made under the 2015 policy. The underwriters offered to maintain the policy and the renewal if the claim was withdrawn.

The brief delay in exercising the avoidance right did not amount to a waiver by the underwriters of that right. They were not prevented (estopped) from relying on the misrepresentation because there was no prejudice suffered by the insured. The insured could not have obtained replacement coverage under the 2015 policy after the loss occurred. There was no evidence that the insured took or failed to take any steps because of the underwriter’s conduct. The appeal was dismissed.

It is important to exercise a right to avoid a policy as soon as possible after the knowledge of the misrepresentation comes to underwriters attention. The rights should be reserved while negotiations take place. Waiver is a conscious act showing an unequivocable intention to abandon known rights and is not easily assumed.

[Kashin v G.E.S. Construction Limited, 2025 ONCA 354 (20250507)]